Wellington v. Daza et al

Filing 80

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 53 MOTION for Partial Summary Judgment based on Qualified Immunity. (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

DAVID WELLINGTON,
Plaintiff,
vs.

No. 17 CV 00732 JAP/LF

FERNANDO DAZA,
SPECIAL AGENT MARSHALL,
SPECIAL AGENT HAND,
JOHN/JANE DOES 1-5,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT
In this Bivens1 action, Plaintiff David Wellington, acting pro se, alleges that a search of
his residence under a search warrant, procured and executed by agents of the United States
Internal Revenue Service (IRS), violated his First and Fourth Amendment rights. See
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES (Doc.
No. 1) (Complaint). IRS Special Agents Fernando Daza (SA Daza), Sean Marshall (SA
Marshall), and Gregory Hand (SA Hand) (together, Defendants) move for summary judgment on
six of Plaintiff’s seven claims. See DEFENDANT DAZA, HAND, AND MARSHALL’S
MOTION FOR PARTIAL SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY
(Doc. No. 53) (the Motion). The Motion is fully briefed. See PLAINTIFF’S RESPONSE TO
DEFENDANTS’ PARTIAL SUMMARY JUDGMENT MOTION ON QUALIFIED
IMMUNITY (Doc. No. 60) (Response), and REPLY OF THE DEFENDANTS IN SUPPORT
1

See Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing
that damages are available under 42 U.S.C. § 1983 for claims against federal law enforcement officials).

1

OF DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 62)
(Reply). The Court will grant the Motion because Defendants are entitled to qualified immunity
on the First Claim, the Second Claim, the Fourth Claim, the Fifth Claim, the Sixth Claim, and the
Seventh Claim.2
I.

STANDARD OF REVIEW
Summary judgment is appropriate if the factual record demonstrates that there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). When applying this standard, the court examines the factual record in
the light most favorable to the non-movant. Belhomme v. Widnall, 127 F.3d 1214, 1216 (10th
Cir.1997). “[T]he movant need not negate the non-movant’s claim, but need only point to an
absence of evidence to support the non-movant’s claim.” Sigmon v. CommunityCare HMO, Inc.,
234 F.3d 1121, 1125 (10th Cir.2000). If the moving party meets this initial burden, the
nonmoving party may not rest on his pleadings but must bring forward evidence showing a
genuine issue for trial as to those dispositive matters for which the nonmoving party carries the
burden. Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
“The doctrine of qualified immunity protects public or government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a
defendant asserts qualified immunity, the plaintiff must satisfy a “strict two-part test.” McBeth v.
2

In the Complaint, the claims are entitled Causes of Action. The Court has denied Plaintiff’s Motion for
Partial Summary Judgment. See MEMORANDUM OPINION AND ORDER DENYING MOTION FOR PARTIAL
SUMMARY JUDGMENT (Doc. No. 46) (MOO Denying Summary Judgment). The Court has also denied
Plaintiff’s Motion for a Preliminary Injunction. See MEMORANDUM OPINION AND ORDER (Doc. No. 68).
Plaintiff has appealed the denial of preliminary injunction. See Notice of Appeal (Doc. No. 73). In the THIRD
CAUSE OF ACTION (Compl. ¶¶ 55–56) (Third Claim), Plaintiff contends that the agents who executed the warrant
unreasonably patted him down for weapons in violation of plaintiff’s right to be free of unreasonable searches. The
Third Claim is not at issue here.

2

Himes, 598 F.3d 708, 716 (10th Cir. 2010) (citation omitted). The plaintiff must establish that 1)
the defendant violated a constitutional or statutory right and 2) the right was clearly established
at the time of the defendant’s conduct. Courtney v. Oklahoma ex rel., Dep’t of Pub. Safety, 722
F.3d 1216, 1222 (10th Cir. 2013). “If the plaintiff fails to satisfy either part of this two-part
inquiry, the court must grant the defendant qualified immunity.” Hesse v. Town of Jackson,
Wyo., 541 F.3d 1240, 1244 (10th Cir. 2008) (quotations omitted). But, if the plaintiff succeeds in
carrying his two-part burden, the burden shifts to the defendant who must show there are no
remaining material issues of fact that would defeat the claim of qualified immunity. Walton v.
Gomez, 745 F.3d 405, 412 (10th Cir. 2014).
While the Court must construe pleadings filed by a pro se litigant liberally, “the courts do
not serve as the pro se litigant’s advocate, and pro se litigants are expected to follow the Federal
Rules of Civil Procedure, as all litigants must.” McDaniels v. McKinna, 96 F. App’x 575, 578
(10th Cir. 2004). In ruling on a motion for summary judgment based on qualified immunity, the
Court must keep in mind three principles. First, the Court’s role is not to weigh the evidence, but
to assess the threshold issue of whether a genuine issue exists as to material facts requiring a
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50. Second, the Court must resolve
all reasonable inferences and doubts in favor of the non-moving party, and it must construe all
evidence in the light most favorable to the non-moving party. See Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014). Importantly however, “a plaintiff’s version of the facts must find support in
the record” at the summary judgment stage. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312
(10th Cir. 2009). Third, the court cannot decide any issues of credibility. See Liberty Lobby, 477
U.S. at 255. At bottom, the non-movant must present evidence “from which a jury might return a
verdict in his favor.” Id. at 257. See Gonzales v. Bernalillo Cty. Sheriff’s Dep’t, CV 16-1045

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MCA/GBW, 2017 WL 3208529, at *4 (D. N.M. Apr. 4, 2017) (discussing summary judgment in
qualified immunity context), report and recommendation adopted, CV 16-1045 MCA/GBW,
2017 WL 3207798 (D. N.M. May 31, 2017).
II.

FACTUAL BACKGROUND
A.

Warrant Application and Execution

On March 10, 2017, SA Daza of the Internal Revenue Service (IRS) Criminal
Investigation Unit applied for a warrant to search Plaintiff’s residence located at 2124 Altura
Verde Ln. NE, Albuquerque, New Mexico. (UMF 1; Mot. Ex. A (Daza Aff.); Mot. Ex. B
(Warrant).) United States Magistrate Judge William P. Lynch reviewed (1) the Warrant
application, (2) SA Daza’s supporting affidavit (Warrant Affidavit); (3) the Warrant itself; and
(4) two attachments to the Warrant describing the residence and the items sought. Case No. 17mr-0186 (Warrant Case) (UMF 2; Mot. Ex. B attachments A and B.) Magistrate Judge William
P. Lynch approved and signed the Warrant on March 10, 2017. See Warrant Affidavit, 17-mr00186 JHR (Doc. No. 1) (unsealed).
On March 14, 2017, SA Marshall, SA Hand, and other federal agents executed the
Warrant. Plaintiff alleges that the agents told him he “could either go inside and sit, or leave[]”
during the search. (See Compl. ¶ 30.) However, Plaintiff adds that since he was only wearing a tshirt and pajama bottoms and was not allowed to change clothes, he had no real choice but to
stay. (Id.) One agent patted down Plaintiff for weapons. (Id. ¶ 27.) During the search, agents
seized numerous documents, publications, and electronic storage devices. (UMF 12; Mot. Ex. B.)
The Court has described in detail all of the items seized at Plaintiff’s residence in its MOO
Denying Summary Judgment (Doc. No. 46) at p. 10. On March 16, 2017, SA Daza filed a return
and an inventory of items seized at the residence. (Mot. Ex. B (inventory).) As of February 20,

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2018, all seized items had been returned to Plaintiff either in original form or in the form of
electronic copies. (UMF 13; Mot. Ex. C (Chavez Aff.)).3
B.

Warrant Affidavit

SA Daza prepared the Warrant Affidavit based on “his personal knowledge, his review of
documents and other evidence, and his conversations with other law enforcement officers.”
(Mot. at 4 citing Mot. Ex. B.) An attorney assigned to IRS Criminal Tax matters reviewed the
Warrant Affidavit prior to its submission to Magistrate Judge Lynch. (UMF 8; Mot. Ex. B.) The
Warrant Affidavit describes an investigation of “whether Stacy Underwood (UNDERWOOD)
and other individuals set up and operated a tax evasion scheme which relies on the use of New
Mexico Domestic Limited Liability Companies (LLCs) and bank accounts[.]” (Warr. Aff. ¶ 5.)
Several facts were listed as supporting probable cause:
1. Records from the IRS indicate that Plaintiff had not filed “U.S. Individual Income tax
returns for over 20 years and may have never filed.” (Id. ¶ 14.) Underwood had not filed
Individual Income tax returns with the IRS since tax year 2004. (Id. ¶ 9.)
2. In 2005, Plaintiff organized National Business Services, LLC (NBS), a New Mexico
LLC, and listed Underwood as the registered agent for NBS. (Id. ¶ 16.) Plaintiff and Underwood
used NBS: to set up LLCs; to obtain Employer Identification Numbers (EINs)4 from the IRS for

3
On April 18, 2017, Plaintiff filed a Motion for Return of Property Seized Under Warrant (Warrant Case
Doc. No. 6). See Fed. R. Crim. P. 41(g). On October 10, 2017, Magistrate Judge Jerry H. Ritter denied the motion
without prejudice for lack of jurisdiction to allow Plaintiff to file a civil action for return of his property or to amend
the Complaint in this case. (Warrant Case Doc. No. 14.) Plaintiff appealed Magistrate Judge Ritter’s ruling to the
Tenth Circuit Court of Appeals, but the appeal was dismissed for lack of jurisdiction. In the Matter of the Search of
2124 Altura Verde Ln. NE, Albuquerque, NM 87110, Wellington v. United States, Case No. 17-2205 (10th Cir. Jan.
8, 2018). Plaintiff filed a motion to consolidate the Warrant Case with this case. Defendants responded that on
February 20, 2018, all of Plaintiff’s property had been returned; therefore, the motion had become moot. Finding
that the Warrant Case and this case are “dissimilar in purpose and procedure” and that the issue had become moot,
the Court denied the motion to consolidate. MEMORANDUM OPINION AND ORDER (Doc. No. 38).
4

EINs are issued to business entities that are required to file business tax returns. (Id.) The EIN is used to
identify the tax accounts of employers and certain other entities that have no employees. (Id.)

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the LLCs; to open bank accounts for the LLCs using only EINs; and to instruct clients how to
deposit and withdraw money from the account to avoid IRS detection. (Id. ¶¶ 3, 5, 6, 16–25.)
3. “The State of New Mexico does not require the organizer of an LLC to identify the
owner of the LLC.” (Id. ¶ 22.) A website associated with NBS advertised “the services provided
by NBS[.]” (Id. ¶ 18.) The NBS website describes how to take advantage of New Mexico law to
open a financial account for an LLC using only the LLCs identifying information to avoid
linking the LLC to its individual owner. (Id. ¶ 21.) Between 2005 and 2016, Plaintiff and
Underwood used NBS to organize “hundreds of New Mexico LLCs with the New Mexico
Secretary of State.” (Id.) NBS requested EINs for over 50 LLCs from the Internal Revenue
Service (IRS). (Id. ¶ 23.)
4. NBS’s website advertises a “Free Asset Protection Training Course,” on how to “keep
your business, income, and property affairs private[.]” (Id. ¶ 19.) Between 2005 and 2016,
“Underwood opened at least 50 bank accounts at Bank of America for New Mexico LLCs that
she organized. Underwood had signature authority on the accounts and sole signature authority
on most of the accounts.” (Id. ¶ 24.) The bank account documents did not identify the owner of
the LLC and also did not “contain the SSN for Underwood as the individual in control of the
account.” As a result, the bank reported to the IRS financial information only for the LLC. (Id.)
5. In January 2011, Underwood set up White Top Enterprises, LLC (White Top), a New
Mexico LLC owned by Jerry R. Shrock (Shrock). Shrock has not filed individual income tax
returns with the IRS for the years 1998-2001; 2003-04; and 2011-2014.5 (Id. ¶¶ 15, 26, & 31.)
Underwood opened a bank account for White Top using only the EIN for White Top and
5
As of January 20, 2016, Shrock had an assessed balance due to the IRS in the amount of $1,485,634.00.
(Id. ¶ 26.) The IRS filed a tax lien on Shrock in 2007 for $1,026,857.00. (Id. ¶ 30.) NBS assisted Shrock in forming
TALC, LLC, a New Mexico LLC. In 2006, Shrock and his wife transferred real property to TALC, LLC apparently
to avoid the attachment of the IRS tax lien to the property. (Id. ¶¶ 26–30.) As of April 2016, TALC, LLC still owned
the property. (Id. ¶ 27.)

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authorizing herself as the only signatory on the account. (Id. ¶ 32.) Between August 2011 and
June 2014, the White Top bank account received deposits of over four million dollars from
Moark, LLC, a company in the egg production industry. (Id. ¶ 33.) IRS Special Agents learned
from an interview with Moark executives that the payments were for installation of specialized
equipment and that Moark considered Shrock the owner of White Top. (Id.) Shrock provided
Moark a required IRS Form W-96 so that Moark could report to the IRS payments made to White
Top. However, the Form W-9 contained only White Top’s EIN, and Shrock did not sign his
name on the form but instead wrote “White Top Enterprises, LLC” on the signature line. (Id. ¶
34.) Based on the information on White Top’s W-9 Form, the IRS would link Moark’s payments
only to White Top’s EIN and not to Shrock individually. (Id.)
6. Under IRS Publication 3402 (Rev. March 2010), a single member LLC is a
disregarded entity for federal income tax purposes and is required to use the owner’s SSN or the
owner’s EIN for reporting purposes. (Id. ¶ 35.)
7. The funds deposited into the White Top bank account were obtained through the use of
debit card transactions, money orders, cash withdrawals from ATMs, and checks signed by
Underwood. The funds were used to buy property, to pay credit card balances, and to pay
expenses for Shrock and his wife. (Id. ¶¶ 37–42.)
8. Plaintiff was believed to have been residing at 2124 Altura Verde Ln. NE because (1)
utility service was in Plaintiff’s name (Id. ¶ 51); (2) Plaintiff had been served a subpoena at that
address (Id. ¶ 52); and (3) Internet service for that address was in Plaintiff’s name (Id. ¶ 55).
9. There were numerous messages between email accounts associated with Underwood
and Plaintiff. (Id. ¶ 56.) Based on the information from the emails, SA Daza stated that in his
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“The purpose of the Form W-9 is to provide a person who is required to file an information return with
the IRS with the correct taxpayer identification number (TIN) to report, for example, income paid, real estate
transactions, mortgage interest paid, acquisition or debt, or contributions made to an IRA.” (Id. ¶ 34.)

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experience, business owners like Plaintiff and Underwood who use email also have other
business records stored on computers and electronic devices. (Id. ¶¶ 57–58.) Based on
information from internet providers, SA Daza opined that computers containing those types of
records would be located at 2124 Altura Ln. NE. (Id. ¶ 59.)
10. Finally, SA Daza stated
I expect that this warrant will be executed reasonably. Reasonable execution will
likely involve conducting an investigation on the scene of what computers, or
storage media, must be seized or copied, and what computers or storage media
need not be seized or copied. Where appropriate, officers will copy data, rather
than physically seize computers, to reduce the extent of the disruption. If, after
inspecting the computers, it is determined that some or all of this equipment is no
longer necessary to retrieve and preserve the evidence, the government will return
that equipment.
(Id. ¶ 66.)
III.

DISCUSSION
The Court recognizes that Plaintiff’s claims have not arisen in a criminal proceeding by

way of a motion to suppress evidence unlawfully seized. Instead, Plaintiff chose to sue under 42
U.S.C. § 1983 and Bivens for civil damages and injunctive relief alleging violations of his
constitutional rights. Although a criminal investigation is ongoing, Plaintiff has not been charged
with a crime. In evaluating Plaintiff’s civil claims, the Court recognizes that Plaintiff bears the
burden of proof to defeat qualified immunity. Cf. United States v. Wyatt, 16-CR-00057-MSK,
2016 WL 6956632, at *4 (D. Colo. Nov. 29, 2016) (unpublished) (recognizing that “where a 4th
Amendment violation occurs but suppression is not warranted, the individual may instead seek
civil damages through an action under Bivens or 42 U.S.C. § 1983.”).
A.

First Claim

In the FIRST CAUSE OF ACTION (Compl. ¶¶ 46–50) (First Claim), Plaintiff alleges
that Defendants “collectively agreed to willfully and wantonly … pursue a search and invasion
8

of plaintiff’s privacy and seizure of property they knew would be unlawful.” (Id. ¶ 47.) Plaintiff
further alleges that Defendants “viewed the search warrant as a mere ‘ticket’ and color of law to
enter the property, and once inside to conduct a general search.” (Id. ¶ 48.) After obtaining the
Warrant, Defendants “conducted a general search and seizure, seizing items regardless of
whether they were listed in the warrant or not.” (Id. ¶ 48.) Plaintiff alleges that as a result the
Defendants willfully “violated his Fourth Amendment right to be free from unreasonable
searches and seizures, and agreed and conspired with each other to do so.” (Id. ¶ 49.)
The Fourth Amendment states that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched and person
or things to be seized.” U.S. Const. amend. IV. To be valid under the Fourth Amendment, a
search warrant must meet three requirements:
(1) it must have been issued by [a] neutral, disinterested magistrate; (2)
those seeking the warrant must [have] demonstrate[d] to the magistrate
their probable cause to believe that the evidence sought [would] aid in a
particular apprehension or conviction for a particular offense; and (3) the
warrant must particularly describe the things to be seized, as well as the
place to be searched.
Bowling v. Rector, 584 F.3d 956, 969 (10th Cir. 2009) (quoting Dalia v. United States, 441 U.S.
238, 255 (1979)). The Warrant was issued by Magistrate Judge Lynch; therefore, the first
requirement is met. In the MOO Denying Summary Judgment (See supra note 2), the Court
denied Plaintiff’s motion for summary judgment to the extent Plaintiff alleged that the Warrant
was facially invalid. The Court found that, as a matter of law, the Warrant was sufficiently
particular even though the Court did not take the Warrant Affidavit into consideration because it
was sealed. Therefore, the third requirement has been met.
To determine whether this Warrant meets the second requirement, the Court must review
the Warrant Affidavit to ensure that Magistrate Judge Lynch “had a substantial basis for
9

concluding that probable cause existed.” United States v. Tisdale, 248 F.3d 964, 970 (10th Cir.
2001). “Probable cause means ‘there is a fair probability that contraband or evidence of a crime
will be found in a particular place.”’ Tisdale, 248 F.3d at 970. However, a district court should
give “great deference to a magistrate’s finding of probable cause, reversing only if the affidavit
supporting the warrant application provides ‘no substantial basis for concluding that probable
cause existed.’” United States v. Roach, 582 F.3d 1192, 1200 (10th Cir. 2009) (quoting United
States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000)).
At the time the Motion was filed, the Warrant Affidavit was under seal. In the Motion,
Defendants assert that the Court should defer decision on probable cause until the Warrant
Affidavit is unsealed. (Mot. at 12.) The Warrant Affidavit has been unsealed, and the Court now
may determine probable cause. However, in footnote 2 of the Response at pp. 2–3, Plaintiff
argues:
Since the Court’s prior opinion determined the warrant was not overbroad
and sufficiently particular despite the lack of any affidavit (Doc. 46 p. 1417), any arguments or evidence concerning any affidavit would be
immaterial as a matter of law. Since defendant Daza’s declaration in
support of the motion almost exclusively only discusses review of his
affidavit and supporting documents (not the warrant itself), it should be
disregarded. Also, the Complaint makes no allegations re: lack of probable
cause.
Through this statement Plaintiff appears to have waived claims related to whether there
was probable cause to issue the Warrant. However, the Court will address probable cause in light
of Plaintiff’s pro se status and his general attacks on the Warrant.
1. Probable Cause
The Warrant Affidavit claims that Plaintiff and Underwood formed NBS to assist Shrock
and other clients to evade taxes in violation of 6 U.S.C. § 7201 (attempt to evade taxes) and 18
U.S.C. § 317 (conspiracy). The Warrant Affidavit states that Plaintiff and Underwood used NBS
10

set up LLCs, obtain EINs, and open bank accounts for those LLCs with only the EINs to allow
their individual clients to avoid IRS detection. Between 2005 and 2016, Plaintiff and Underwood
organized hundreds of NM LLCs and opened bank accounts for at least fifty LLCs using an EIN
only. The Warrant Affidavit identifies services provided to Shrock, including forming White
Top, obtaining an EIN for White Top, and opening a bank account using only White Top’s EIN.
Consequently, assets deposited into the White Top account would be reported to the IRS under
White Top’s EIN and not under Shrock’s personal tax identification number (social security
number). Deposits to the account in the amount of $4 million were used for Shrock’s benefit.
According to the Warrant Affidavit, Shrock has not filed individual tax returns reporting those
earnings.
Probable cause exists if “facts and circumstances within the [official’s] knowledge and of
which [he] had reasonably trustworthy information are sufficient in themselves to warrant a man
of reasonable caution in the belief that an offense has been or is being committed.” Eckert v.
Dougherty, 658 F. App’x 401, 406–07 (10th Cir. 2016). This Court concludes that an objectively
reasonable official reviewing the Warrant Affidavit could easily have concluded there was
probable cause to search Plaintiff’s residence for documents and electronic records containing
evidence of an elaborate scheme to help clients evade taxes. Therefore, Defendants are entitled to
qualified immunity on the First Claim to the extent the First Claim may assert that the Warrant
was not supported by probable cause.
2. Execution of the Warrant
The Fourth Amendment protects individuals against unreasonable searches and seizures.
See U.S. Const. amend. IV. In conducting a search, agents are limited to the scope of the
applicable warrant and have a duty to execute a search in a reasonable manner. United States v.

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Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993). Failure to execute a search warrant reasonably
violates an individual’s Fourth Amendment rights. Voss v. Bergsgaard, 774 F.2d 402, 404 (10th
Cir. 1985).
In the First Claim, Plaintiff asserts that SA Marshall and SA Hand performed an unlawful
“general search” and seized items “regardless of whether they were listed in the warrant or not.”
(Compl. ¶ 48.) As stated by the Tenth Circuit,
By 1927, the Supreme Court had held that “[t]he requirement that warrants shall
particularly describe the things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a warrant describing
another.” Marron v. United States, 275 U.S. 192, 196 … (1927)). And in 1990,
the Court explained that “[i]f the scope of the search exceeds that permitted by the
terms of a validly issued warrant or the character of the relevant exception from
the warrant requirement, the subsequent seizure is unconstitutional without
more.” Horton v. California, 496 U.S. 128, 140 … (1990)).
Bowling v. Rector, 584 F.3d at 971. Hence, it would have been clear to SA Marshall and SA
Hand that seizing items not described in the Warrant was unlawful. Id.
In the Motion, Defendants argue: “[A]s no constitutional violation occurred in the
execution of the search warrant at Plaintiff’s residence, Plaintiff has not provided (and cannot
provide) any controlling authority demonstrating that Defendants’ particular conduct was in
violation of a clearly established right[.]” (Mot. at 19.) Defendants further assert that
“Defendants ‘acted in an objectively reasonable manner’ and are entitled to qualified immunity.”
(Id.) Finally, Defendants maintain that they “were objectively reasonable in executing a valid
constitutional search warrant.” (Id. at 20.)
In response to these arguments, Plaintiff may not rest on his pleadings, but must come
forward with some evidence showing a genuine issue for trial supporting the existence of a
constitutional violation. Kannady v. City of Kiowa, 590 F.3d at 1169 (“If the movant carries this
initial burden, the nonmovant may not rest on its pleadings, but must bring forward specific facts
12

showing a genuine issue for trial as to those dispositive matters for which it carries the burden of
proof.” (citation omitted)).
Plaintiff argues that Defendants failed to raise qualified immunity from Plaintiff’s First
Claim that Defendants executed the Warrant in violation of the Fourth Amendment. (Resp. at 3.)
The Court disagrees. Defendants argued that they were “objectively reasonable in executing a
valid constitutional search warrant.” (Mot. at 20.) Moreover, in the Reply, Defendants argue that
Plaintiff has placed no material facts in the record, except “a cursory affidavit filed alongside his
Motion for a Preliminary Injunction.” (Reply at 3.)7 Therefore, Defendants raised qualified
immunity with regard to the First Claim and Plaintiff’s failure to adduce evidence that the
Defendant seized items beyond the scope of the Warrant.
First, it is undisputed that SA Daza was not present at the search; therefore, all claims
regarding the execution of the Warrant will be dismissed against SA Daza. Second, since SA
Marshall and SA Hand have asserted qualified immunity from claims related to the execution of
the Warrant, it is incumbent upon Plaintiff to present evidence that items not described in the
Warrant were seized. This Plaintiff has failed to do. Defendants have presented the inventory of
items seized at Plaintiff’s residence along with the Affidavit of SA Crystal Chavez describing the
preparation of the inventory and the return of all items listed on the inventory to Plaintiff. SA
Chavez included evidence that Plaintiff received the inventory and items that were returned. (See
Mot. Ex. C (Doc. No. 53-3).) Plaintiff has presented no evidence showing that there were items

7

Plaintiff’s affidavit attached to the MOTION FOR PRELIMINARY INJUNCTION (Doc. No. 51-1)
contains three paragraphs. The first states that Plaintiff received no notice of “any hearing being required or afforded
concerning the seizure of any publications, literature, or writings, that were seized as ‘tax defier’ materials on March
15, 2017.” (Id. ¶ 1.) The second states that during the search of his residence “I overheard one agent directing a
searching for ‘family records’.” (Id. ¶ 2.) The third states that Plaintiff “observed someone with a camera/video
camera, and saw them take a video of the interior of the house. No such recording appears in the warrant
‘inventory’.” (Id. ¶ 3.) The information related in this affidavit provides no support to Plaintiff in his opposition to
the Defendants’ Motion. Therefore, Defendants rightly argue that Plaintiff has presented no summary judgment
evidence to support the denial of Defendants’ Motion.

13

seized at his residence other than those described in the Warrant. Consequently, the Court will
grant qualified immunity to Defendants on the First Claim alleging unlawful execution of the
Warrant.
B.

Second Claim
1. Probable Cause

In his SECOND CAUSE OF ACTION (Compl. ¶¶ 51–54) (Second Claim), Plaintiff
alleges that the seizure of his “computer/electronic records not only violated the Fourth
Amendment, but even Fed. R. Crim. P. 41 itself.”8 (Compl. ¶ 52.) Plaintiff alleges that SA Daza
unlawfully “caused the electronic records to be copied for a later unrestricted search for anything
at all.” (Id. ¶ 53.) Plaintiff claims that the Defendants willfully “violated plaintiff’s Fourth
Amendment right to be free of unreasonable searches and seizures by seizing the electronic
equipment and intend on continuing to violate the right by copying the electronic data for their
later unrestricted browsing for absolutely anything at all.” (Id. ¶ 54.) In the MOO Denying
Summary Judgment, the Court held that even though the Warrant lacked specific search
protocols for electronic data, under Tenth Circuit law the Warrant was sufficiently particular.
(MOO Denying Summary Judgment at 20.) The Court also finds that the Warrant to search for
and seize electronic storage devices was supported by probable cause that the computers and
electronic data at Plaintiff’s residence would contain evidence that Plaintiff violated 26 U.S.C. §
7201 and 18 U.S.C. § 371. See United States v. Christie, 717 F.3d 1156, 1166 (10th Cir. 2013).
8

Plaintiff does not cite a specific section of Fed. R. Crim. P. 41. The Court finds that Plaintiff has not
alleged or presented facts or evidence supporting a finding that Defendants violated Rule 41; therefore, the Court
will dismiss this part of the Second Claim. Specifically, Rule 41(e)(2)(B) governs warrants seeking Electronically
Stored Information (ESI). This provision sets out the “seize first, search second” two-step rule created for ESI,
which was developed because “computer and other electronic storage media commonly contain such large amounts
of information that it is often impractical for law enforcement to review all of the information during execution of
the warrant at the search location.” See Fed. R. Crim. P. 41(e)(2) advisory committee’s note. In the Matter of Search
of Info. Associated with Email Addresses Stored at Premises Controlled by the Microsoft Corp., 212 F. Supp. 3d
1023, 1034–35 (D. Kan. 2016).

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SA Daza clearly described how Plaintiff and Underwood used email to communicate about their
business, and that in his experience, Daza knew that people who use email also store documents
in computers and other electronic devices. In the Warrant Affidavit, SA Daza informed
Magistrate Judge Lynch of the probability that computers were in the residence by showing that
the internet service to the residence was in Plaintiff’s name. SA Daza outlined how Plaintiff and
Underwood advertised through a website to gain clients. In sum, this information was sufficient
to establish probable cause to believe evidence of tax evasion and conspiracy to commit tax
evasion would be found stored in computers and electronic devices.
2. Execution of the Warrant
Plaintiff alleges that Defendants violated the Fourth Amendment when Defendants
“caused the electronic records to be copied for a later unrestricted search for anything at all.”
(Compl. ¶ 53.) Plaintiff contends that even though Defendants were not required to include
limiting protocols to use in searching electronic storage devices, “such protocols are still
required after a seizure of electronics (and obviously before any electronics searches actually
begin).” (Resp. at 4) (emphasis in original). According to Plaintiff, “[t]he question to be
answered now is what search protocols were in fact used, if any, in the defendant(s) conducting
whatever searches they made? Defense counsel presents absolutely zero evidence on this issue.”
(Id.) (emphasis in original). Plaintiff notes that “since no one has been identified as actually
conducting any electronic searches, the question also arises as to whether defense counsel has
any authority for making arguments for unknown, non-joined party(s).” (Id. note 3.) Plaintiff
cites United States v. Christie for the proposition that the law in this Circuit requires such “ex
post” protocols prior to examining electronic data. 717 F.3d at 1167. However, Christie does not
go as far as Plaintiff would like.

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The court in Christie held that the defendant failed support her motion to suppress with
any evidence that the search for evidence in her computer, which was limited by the warrant to
evidence “related to the murder, neglect, and abuse of” the defendant’s daughter, violated the
Fourth Amendment. Id. at 1165–1167. The court rejected defendant’s argument that the warrant
itself had to contain search protocols for proper computer searches. However, the court
recognized that the lack of search protocols in a warrant did not mean that the Fourth
Amendment has “nothing to say on how a computer search should proceed.” Id. at 1166. The
court opined that “the Amendment’s protection against ‘unreasonable’ searches surely allows
courts to assess the propriety of the government’s search methods (the how) ex post in light of
the specific circumstances of each case.” Id. (citing United States v. Ramirez, 523 U.S. 65, 71
(1998) (“The general touchstone of reasonableness…governs the method of execution of the
warrant.”)). The court continued: “even if courts do not specify particular search protocols up
front in the warrant application process, they retain the flexibility to assess the reasonableness of
the search protocols the government actually employed in its search after the fact, when the case
comes to court, and in light of the totality of circumstances.” Id. at 1167. The court in Christie
concluded:
To undertake any meaningful assessment of the government’s search techniques
in this case (the how), we would need to understand what protocols the
government used, what alternatives might have reasonably existed, and why the
latter rather than the former might have been more appropriate. Unfortunately,
however, that we do not have in this case. Though Ms. Christie bore the burden of
proof in her suppression proceeding, she offered little evidence or argument
suggesting how protocols the government followed in this case were unreasonable
or insufficiently particular, especially when compared with possible alternatives.
Without more help along these lines, we simply cannot assess rationally her
challenge to the government’s search procedures in this case and must leave the
development of the law in this area to future cases.

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Id. at 1167. Here, Defendants maintain that Plaintiff’s claims that the search of electronically
stored information was unlawful are “speculative, unconfirmed allegations which are not
sufficient to meet a summary judgment burden[.]” (Mot. at 10.) The Court agrees. It may be
inferred that someone has searched Plaintiff’s electronic storage devices and copied files from
them because all of the devices have been returned to Plaintiff. Yet, Plaintiff has presented no
evidence that the electronic storage devices contained information that was beyond the scope of
the Warrant. Instead, Plaintiff relies on the allegations in his Complaint, which are conclusory
statements that [s]ince the search warrant contained no limitations, it is the intention of
defendants Daza, …, and other unknown parties to rummage through all of the records without
any restriction looking for absolutely anything.” (Compl. ¶ 37.) These unsupported allegations
are insufficient.
As Plaintiff points out, courts may assess the propriety of the government’s search
methods ex post in light of the specific circumstances of each case. According to Plaintiff, this
court should determine “what search protocols were in fact used, if any[.]” (Resp. at 4.) Plaintiff
contends that Defendants have failed to offer evidence on that issue; therefore, “there is simply
insufficient information for making any qualified immunity determination.” (Id.) It is Plaintiff
who has the burden to show a clearly established constitutional violation, and Plaintiff has failed
to present any evidence to show that Defendants searched for and obtained evidence not
described in the Warrant. Of course, in any criminal proceeding, electronically stored
information that is beyond the scope of the Warrant, for instance, showing crimes unrelated to
tax evasion or conspiracy to commit tax evasion, may be excluded. Cf. Voss, 774 F.2d at 405
(describing dangers of broadly worded warrants allowing the search of electronic records
evincing any federal crime instead of the crime of tax fraud). However, because Plaintiff has

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failed to meet his burden of proof to defeat Defendants’ qualified immunity, the Court will
dismiss the Second Claim.
C.

Fourth Claim

In the FOURTH CAUSE OF ACTION (Compl. ¶¶ 57–58) (Fourth Claim), Plaintiff
accuses SA Marshall and SA Hand of violating his rights by restricting his liberty to move about
the house during the execution of the Warrant. (Id.) As Defendants point out, Plaintiff admits
that the agents executing the search warrant told him that he was free to leave the house during
the search. Plaintiff counters that because he was not allowed to put on clothing, he was not
really free to leave. Yet, even if Plaintiff was essentially detained during the search by not being
allowed to change clothes, such a detention is constitutionally permissible. Michigan v.
Summers, 452 U.S. 692 (1981). In Summers the Supreme Court held that “a warrant to search for
contraband founded on probable cause implicitly carries with it the limited authority to detain the
occupants of the premises while a proper search is conducted.” Id. at 705. In Harman v. Pollock,
446 F.3d 1069 (10th Cir. 2006), the Tenth Circuit concluded that under Summers and Muehler, et
al v. Mena, 544 U.S. 93 (2005), police officers have a “categorical” authority to detain persons
found on the premises subject to a lawful search warrant for “contraband” materials. Id. at 1086
(citing Summers, 452 U.S. at 705; Muehler, 544 U.S. at 98). Because Plaintiff has failed to show
that he was unlawfully detained during the search of his residence, the Court will grant
Defendants qualified immunity on Claim Four.
D.

Fifth Claim

In the FIFTH CAUSE OF ACTION (Compl. ¶¶ 59–62) (Fifth Claim), Plaintiff alleges
that Defendants searched for and seized publications “based solely on their content and ideas
they expressed. The defendants obtained a warrant which contained language they knew left it

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entirely to the discretion of the searching agents what was to be seized, and they treated it like a
general warrant.” (Id. ¶ 60.) Defendants’ actions were done “in plain and clear violation of First
Amendment protected Free Speech and Press constitutional limitations.” (Id. ¶ 61.) Plaintiff
claims that Defendant Daza has retained the materials “in order (at least in part) [to] engage in
censorship of the materials…. [i]n plain and clear violation of the First Amendment Free Speech
and Press constitutional limitations.” (Id. ¶ 62.)
As discussed in its MOO Denying Summary Judgment, the Warrant allowed agents to
seize only books and printed material related to the crimes of tax evasion and related
conspiracies. As instrumentalities of crime, such materials are not protected by the First
Amendment. Voss, 774 F.2d at 406. In addition, Plaintiff has presented no evidence that items
seized at his residence lacked relationship to the crimes of tax evasion, attempted tax evasion, or
conspiracy to commit tax evasion. Therefore, the Court will grant summary judgment on the
Fifth Claim and will dismiss the claim.
E.

Sixth Claim

In his SIXTH CAUSE OF ACTION (Compl. ¶¶ 63–65) (Sixth Claim), Plaintiff alleges
that the Defendants collectively agreed to willfully and wantonly “disregard any such limitations
and search for and seize any and all information about plaintiff’s ‘contacts’ and people he may
know, regardless of purpose. This included family, friends, acquaintances, political affiliations,
and anyone plaintiff might know for any purpose.” (Id. ¶ 64.) In addition, Plaintiff claims that
“defendants obtained and executed a warrant which contained language they knew was not
anywhere near narrow enough to comply with the precision required by the First Amendment
when Associational rights are involved. They then treated it like a general warrant, seized
whatever they liked, and turned over the seized items to defendant Daza.” (Id. ¶ 65.)

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To the extent this claim seeks to invalidate the warrant for lack of particularity or
probable cause, the Court will grant summary judgment in favor of Defendants. The First
Amendment does not prevent a search for items that tend to prove conspirators’ associations with
each other for illegal purposes. Voss, 774 F.2d at 407 (Logan, J. concurring). Moreover,
Plaintiff’s claim that challenges the manner in which the Warrant was executed will be
dismissed. Plaintiff has presented no evidence that Defendants seized information about
Plaintiff’s associates that was unrelated to the crimes of conspiracy or tax evasion. Therefore, the
Court will grant summary judgment on the Sixth Claim.
F.

Seventh Claim

In the SEVENTH CAUSE OF ACTION (Compl. ¶¶ 66–68) (Seventh Claim), Plaintiff
alleges that 120 [days] have passed since the search and seizure raid … [Defendants] have made
no attempt to contact plaintiff about returning any seized items still in their possession, and have
no apparent intention of doing so, resulting in permanent deprivation of the property.” (Id. ¶ 67.)
Plaintiff asserts that the retention of his property “is simply unreasonable under the Fourth
Amendment and in violation of it.” (Id. ¶ 68.) This issue has been decided. The Court described
in its MEMORANDUM OPINION AND ORDER (Doc. No. 38) that as of February 20, 2018, the
Government had returned to Plaintiff all items seized under the Warrant either in their physical
tangible form or via electronic copy on storage disks. Therefore, summary judgment will be granted
and Claim Seven will be dismissed as moot.
G.

Other Matters

In the Motion, Defendants renewed their request to stay discovery pending resolution of the
Motion. In addition, Defendants requested that discovery be stayed until the Warrant Affidavit is
unsealed. As for Plaintiff’s Third Claim challenging the pat-down search of his person by agents
executing the Warrant, Defendants ask the Court to allow limited discovery as to that claim. This

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ruling disposes of the Motion and the Warrant Affidavit has been unsealed; therefore, discovery may
be appropriate on issues related to the Third Claim. The Court will leave it to the parties to work out
a discovery plan with presiding Magistrate Judge Laura Fashing.

IT IS ORDERED that DEFENDANT DAZA, HAND, AND MARSHALL’S MOTION
FOR PARTIAL SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY (Doc. No.
53) is granted, and summary judgment will be entered dismissing the First Cause of Action, the
Second Cause of Action, the Fourth Cause of Action, the Fifth Cause of Action, the Sixth Cause
of Action, and the Seventh Cause of Action.

SENIOR UNITED STATES DISTRICT JUDGE

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